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Is a boycott an exercise of free speech?

Boycotts are as American as the Boston Tea Party. History remembers the Montgomery bus boycott for civil rights; the grape boycott in support of farmworkers; the anti-apartheid calls for divestment from South Africa.

Supreme Court Justice John Paul Stevens was what we would now describe as an extinct political species: a liberal Republican. In his memoir, “The Making of Justice,” Stevens remembers with pride his 1982 precedent-setting opinion in the landmark boycott case from Claiborne County, Miss.

The Claiborne County branch of the National Association for the Advancement of Colored People boycotted local white merchants when its anti-segregation, social justice agenda was rejected. A unanimous U.S. Supreme Court overturned numerous Mississippi court rulings to affirm the constitutional right of all citizens to organize boycotts to achieve political, economic and social change. Not just activities in support of boycotts, but boycotts themselves were to be protected under the First and Fourteenth Amendments.

However, a recent appeals court ruling on a case from Arkansas threatens to upset precedent and take away citizens’ right to boycott.
In 2017, the eschatologically motivated Razorback Legislature, dominated by Republicans, passed a law mandating that state agencies not do business with contractors who refused to pledge in writing that they won’t boycott Israel.

Alan Leveritt may be a stubborn old man. He is founder and publisher of the Arkansas Times newspaper. He has no position on the Israel-Palestine conflict and no desire to boycott Israel. But he refused to sign the pledge because, in his own words, “We don’t take political positions in return for advertising.” He depended on ads from a branch of the University of Arkansas as revenue.

He believes he’d be signing away his right to freedom of conscience as a journalist if he signed and be unworthy of the protections granted journalists under the First Amendment. So, he sued to overturn the law. He is represented by the American Civil Liberties Union.

After a three-judge Appeals Court panel reversed the District Court to support his claim that the state law imposes a condition on contractors like the newspaper that implicates their First Amendment rights, the full Eighth Circuit Appeals Court on June 22 ruled against Leveritt and upheld the anti-boycott law.

In the opinion of Judge Jonathan Kobes, a Trump nominee, Claiborne protections apply only to speech accompanying a boycott, not the boycott itself. Furthermore, he ruled, economic boycott decisions are nonexpressive conduct unprotected by the Constitution.

In a masterful dissent, Judge Jane Kelly noted that the Arkansas anti-boycott law, as written, instructs the state to look at the newspaper’s language and its association with others to determine whether the paper is participating in a boycott. This limits what the newspaper may say or do to support a boycott if it so wishes. This undermines the nice distinction the majority makes between expressive and nonexpressive speech.

Meanwhile, the Texas Legislature has passed similar anti-boycott legislation, which outlaws state business with contractors who refuse to sign anti-boycott language in support of fossil fuel firms or gun manufacturers.

Leveritt and the ACLU vow to appeal to the U.S. Supreme Court. The high court might take the case if there is a conflicting ruling from another circuit appeals court or the Supreme Court decides the constitutional issues involved are important enough for the court to intervene.

I’m buoyed by the consensus of First Amendment scholars who wrote amicus briefs supporting Leveritt’s courageous, if controversial, position, despite the outcome so far.

Gene Damm lives in Albany.

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